UNITED  STATES  RAILROAD  ADMINISTRATION 
W.  G.  McADOO,  Director  General  of  Railroads 

BULLETIN  NO.  5 


OPINION 

Sustaining  the  authority  of 

W.  G.  McAdoo,  Director  General  of  Railroads,  re  General 

Orders  18  and  18-A,  and  their  validity  under  the 

Federal-Control  Act  approved  March  21, 1918, 

and  the  constitutionality  of  said  Act 


By 

Honorable  Jacob  Trieber 
United  States  District  Judge  for  the  Eastern  District  of 
Arkansas,  sitting  in  the  Eastern  Division  of  the 
Eastern  District  of  Missouri 


ISSUED  BY  DIVISION  OF  LAW 

JOHN  BARTON  PAYNE,  General  Counsel 


OCTOBER  25.  1918 


WASHINGTON 
GOVERNMENT  PRINTING  OFFICE 

1918 


In  the  District  Court  of  the  United  States  for  the  Eastern  Division  of 

the  Eastern  District  of  Missouri. 

Nei.i.ii:    Wainwright,    Administratrix,    Etc.,    Plaintiff,^ 

v.  y  No.   4893. 

Pennsylvania  Railroad  Company,  Defendant. 


} 


The  plaintiff  on  May  6,  1918,  instituted  this  action  to  recover  damages 
under  the  employers'  liability  act  for  the  death  of  her  husband,  alleged 
to  have  resulted  from  injuries  sustained  on  December  26,  191 7,  while  in 
the  service  of  the  defendant  and  while  both  were  engaged  in  interstate 
commerce.     The  defendant  filed  a  plea  in  abatement,  alleging  as  causes: 

1 .  The  Pennsylvania  Railroad  Company,  defendant  herein,  is  a  common 
carrier  now  under  control  of  the  United  States  Railroad  Administration. 

2.  The  plaintiff  herein,  and  the  deceased,  John  Wainwright,  resided 
at  the  time  of  the  accrual  of  the  cause  of  action  stated  in  the  plaintiff's 
petition  in  the  city  of  Pittsburgh,  State  of  Pennsylvania. 

t,.  That  the  place  of  trial,  to  wit:  City  of  St.  Louis,  State  of  Missouri, 
is  far  removed  from  the  place  where  the  plaintiff  was  injured  and  resided 
at  the  time  of  the  accrual  of  this  action,  to  wit:  City  of  Pittsburgh,  Pa.; 
that  the  trial  of  this  suit  in  the  city  of  St.  Louis,  Mo.,  will  necessitate 
the  summoning  of  men,  to  wit:  Engineman  N.  Carlson,  Fireman  W.  J. 
Corbett,  Conductor  W.  Baker,  and  Brakeman  J.  Wainwright,  now 
operating  trains  in  points  distant  from  the  place  of  trial  and  keep  them 
for  a  considerable  period  of  time  from  said  work  of  operating  trains,  all 
of  which  will  greatly  prejudice  the  interests  of  the  Government  in  main- 
taining railroad  traffic  for  war  purposes. 

And  the  defendant  further  states  that  the  above  specifications  of 
facts,  enumerated  above,  constitute  to  all  intents  and  purposes  a  case 
of  abatement  under  General  Order  No.  26,  promulgated  by  the  United 
States  Railroad  Administration  on  May  23,  191 8,  and  General  Order 
No.  18-A,  promulgated  by  the  United  States  Railroad  Administration 
on  May  18,  1918. 

To  this  plea  the  plaintiff  demurred. 

The  general  orders  pleaded  by  the  defendant  were  promulgated  by  the 
Director  General  of  the  United  States  Railroad  Administration.  General 
Order  No.  18,  made  on  April  9,  1918,  reads:] 

Whereas  the  act  of  Congress  approved  March  21,  191 8,  entitled  "An 
act  to  provide  for  the  operation  of  transportation  systems  while  under 
Federal  control,"  provides  (sec.  10),  "That  carriers  while  under  Federal 
control  shall  be  subject  to  all  laws  and  liabilities  as  common  carriers, 
whether  arising  under  State  or  Federal  laws  or  at  common  law,  except  in 
so  far  as  may  be  inconsistent  with  the  provisions  of  this  act  or  with  any 
order  of  the  President,  *  *  *  But  no  process,  mesne  or  final,  shall 
be  levied  against  any  property  under  such  Federal  control";  and 

Whereas  it  appears  that  suits  against  the  carriers  for  personal  injuries, 
freight  and  damage  claims  are  being  brought  in  States  and  jurisdictions 
far  remote  from  the  place  where  plaintiffs  reside  or  where  the  cause  of 

82646°— 16  (2) 


URL 


action  arose,  the  effect  thereof  being  that  men  operating  the  trains 
engaged  in  hauling  war  materials,  troops,  munitions,  or  supplies  are 
required  to  leave  their  trains  and  attend  court  as  witnesses,  and  travel 
sometimes  for  hundreds  of  miles  from  their  work,  necessitating  absence 
from  their  trains  for  days  and  sometimes  for  a  week  or-  more,  which  prac- 
tice is  highly  prejudicial  to  the  just  interests  of  the  Government  and 
seriously  interferes  with  the  physical  operation  of  the  railroads;  and  the 
practice  of  suing  in  remote  jurisdictions  is  not  necessary  for  the  protec- 
tion of  the  rights  or  the  just  interests  of  plaintiffs; 

It  is  therefore  ordered,  That  all  suits  against  carriers  while  under 
Federal  control  must  be  brought  in  the  county  or  district  where  the  plain- 
tiff resides  or  in  the  county  or  district  where  the  cause  of  action  arose. 

On  April  18,  1918,  this  general  order  was  amended  by  General  Order 

No.  i8-A,  as  follows  :J 

It  is  therefore  ordered  that  all  suits  against  carriers  while  under  Federal 
control  must  be  brought  in  the  county  or  district  where  the  plaintiff 
resided  at  the  time  of  the  accrual  of  the  cause  of  action  or  in  the  county 
or  district  where  the  cause  of  action  arose.    P 

As  this  action  was  instituted  after  the  promulgation  of  General  Orders 
Nos.  18  and  18-A,  and  no  question  of  limitation  can  possibly  arise,  it  is 
unnecessary  to  refer  to  or  pass  upon  the  effect  of  General  Order  No.  26 
in  disposing  of  these  pleas. 

These  general  orders  are  claimed  to  have  been  made  by  authority 
vested  in  the  President  and  the  Director  General  designated  by  the 
President  by  the  appropriation  act  of  August  29,  1916,  ch.  418,  39 
St.  645  and  the  act  of  Congress  entitled,  "An  act  to  provide  for  the 
operation  of  transportation  systems  while  under  Federal  control,  for 
the  just  compensation  of  their  owners,  and  for  other  purposes,"  ap- 
proved March  21,  191 8. 

Browning,  Mason  &  Altman,  of  St.  Louis,  Mo.,  for  plaintiff. 
Fordyce,  Holliday  &  White,  of  St.  Louis,  Mo.,  for  defendant. 
Mr.  E.  H.  Seneff  and  Mr.  D.  P.  Williams,  of  Pittsburgh,  Pa.,  by 
leave  of  the  court  filed  a  brief  as  amici  curies. 
TriEbER,  district  judge,  after  stating  the  facts  as  above. 
The  demurrer  to  the  plea  raises  two  questions  of  law : 

1.  Assuming  that  the  act  of  Congress  authorizes  the  President  and 
the  agencies  appointed  by  him  to  make  these  regulations,  Is  the  act 
warranted  by  the  Constitution? 

2.  Does  the  act  vest  the  power  to  make  these  regulations  in  the 
President  or  the  Director  General  ? 

At  the  outset  of  this  opinion,  it  is  proper  to  state  that,  as  this  action 
was  originally  instituted  in  a  court  of  the  United  States,  the  question 
whether  Congress  may  authorize  the  general  orders  in  question  to  apply 
to  the  courts  of  the  States  is  not  involved,  and  therefore  can  not  be 
determined  in  this  proceeding.  What  is  stated  in  this  opinion  is  neces- 
sarily intended  to  apply  solely  to  actions  instituted  in  the  national  courts. 
Whether,  under  the  war  power,  Congress  may  enact  laws  affecting  the 
maintenance  of  actions  in  the  State  courts,  can  only  be  deU-rmined 
when  it  properly  comes  before  the  court.     To  express  an  opinion  on 


4 

that  question  in  the  instant  case  would  be  clearly  obiter,  and  the  court,  for 
this  reason,  limits  this  opinion  to  actions  instituted  in  the  national  courts. 

Has  Congress  the  power  to  enact  this  legislation,  assuming  that  it  vests  the  power 

claimed  on  behalf  of  the  defendant? 

That  Congress  possesses  the  power  to  enact  legislation  of  this  nature, 
under  the  Constitution,  can  not  be  questioned  at  this  day.  There  are 
several  grounds  upon  which  it  must  be  sustained. 

i.  In  McCulloch  v.  Maryland,  17  U.  S.  316,  421,  Chief  Justice  Marshall 
delivering  the  opinion  of  the  court,  it  was  held  as  a  proper  canon  of  the 
interpretation  of  the  powers  of  Congress  under  the  National  Constitu- 
tion, among  others:  "Let  the  end  be  legitimate,  let  it  be  within  the 
scope  of  the  Constitution,  and  all  means  which  are  appropriate,  which 
are  plainly  adapted  to  the  end,  which  are  not  prohibited,  but  consistent 
with  the  letter  and  spirit  of  the  Constitution,  are  constitutional." 

This  rule  of  construction  has  never  been  doubted  or  questioned  by 
any  subsequent  decision,  but  has  been  uniformly  followed,  whenever  it 
has  been  before  the  courts,  and  must,  therefore,  be  accepted  as  ele- 
mentary in  the  construction  of  the  National  Constitution.  That  there 
is  nothing  in  the  Constitution  prohibiting  Congress  from  determining  the 
venue  in  civil  actions  is  beyond  question. 

Article  1,  section  8,  clause  11,  of  the  Constitution  grants  Congress 
the  power  to  declare  war,  and  clause  12  of  that  section  empowers  it  to 
raise  and  support  armies.  That  by  virtue  of  these  provisions  of  the 
Constitution,  Congress  may  use  all  means  which  are,  in  its  opinion, 
appropriate  to  that  end  and  not  prohibited  by  some  provision  of  the 
Constitution  has,  under  the  rule  established  in  McCulloch  v.  Maryland, 
been  settled  in  Miller  v.  United  States,  78  U.  S.  268;  Stewart  v.  Kahn, 
78  U.  S.  493,  506,  507;  reaffirmed  in  Mayfield  v.  Richards,  115  U.  S.  137- 
In  Stewart  v.  Kahn,  it  was  held:  "The  measures  to  be  taken  in  carry- 
ing on  war  and  to  suppress  insurrection  are  not  defined.  The  decision 
of  all  such  questions  rests  wholly  in  the  discretion  of  those  to  whom 
the  substantial  powers  involved  are  confided  by  the  Constitution. 

"In  the  latter  case  the  power  is  not  limited  to  victories  in  the  field 
and  the  dispersion  of  the  insurgent  forces.  It  carries  with  it  inherently 
the  power  to  guard  against  the  immediate  renewal  of  the  conflict  and 
to  remedy  the  evils  which  have  arisen  from  its  rise  and  progress." 

The  same  principle  was  recognized  in  the  Legal  Tender  cases,  79  U.  S. 
457.  539.  where  it  was  held:  "Before  we  can  hold  the  legal  tender  acts 
unconstitutional,  we  must  be  convinced  they  were  not  appropriate  means, 
or  means  conducive  to  the  execution  of  any  or  all  of  the  powers  of  Con- 
gress, or  of  the  Government,  not  appropriate  in  any  degree  (for  we  are 
not  judges  of  the  degree  of  appropriateness),  or  we  must  hold  that  they 
were  prohibited.  This  brings  us  to  the  inquiry  whether  they  were, 
when  enacted,  appropriate  instrumentalities  for  carrying  into  effect,  or 
executing  any  of  the  known  powers  of  Congress,  or  of  any  department 
of  thepovernment.     Plainly  to  this  inquiry,  a  consideration  of  the  time 


when  they  were  enacted,  and  of  the  circumstances  in  which  the  Govern- 
ment then  stood,  is  important.  It  is  not  to  be  denied  that  acts  may  be 
adapted  to  the  exercise  of  lawful  power,  and  appropriate  to  it,  in  sea- 
sons of  exigency,  which  would  be  inappropriate  at  other  times."  See 
also  the  address  of  former  Justice  Hughes  on  the  "War  powers  under 
the  Constitution,"  volume  42,  American  Bar  Association,  232. 

Whether  the  exigenciesexisted  when  Congress  enacted  this  statute  was 
for  that  body  to  determine  and  can  not  be  questioned  by  the  courts,  if 
there  is  any  substantial  ground  therefor.  McCulloch  v.  Maryland,  supra, 
Lottery  cases,  188  U.  S.  321,  355;  McDermott  v.  Wisconsin,  228  U.  S.  115, 
128.  That  there  was  substantial  ground  for  the  enactment  of  the  statute 
requires  no  argument.  The  conditions  so  graphically  described  in  the 
Legal  Tender  cases  (p.  540)  prevail  now,  and  it  will  conduce  to  brevity 
to  refer  to  what  was  there  said,  without  quoting  it  in  this  opinion. 

That  the  act  was  enacted  under  the  war  power  is  not  only  apparent 
from  its  content,  but  it  is  expressly  declared  in  section  16  of  the  act, 
"to  be  emergency  legislation,  enacted  to  meet  conditions  growing  out  of 
the  war,"  and  section  14  provides  that  the  Federal  control  of  railroads 
shall  continue  not  exceeding  one  year  and  nine  months  after  the  ratifi- 
cation of  the  treaty  of  peace. 

2.  Another  ground  upon  which  the  act  must  be  sustained  is  that  the 
right  to  maintain  an  action  in  any  particular  court  is  always  subject  to 
the  legislative  will.     It  is  only  when  one  is  deprived  of  all  rights  to 
maintain  an  action  for  the  redress  of  his  wrongs  that  the  statute  would 
be  obnoxious  to  the  fifth  amendment  to  the  Constitution.     Congress  has 
uniformlv  exercised  that  power  by  providing  in  what  courts  suits  may 
be  maintained,  and  in  no  instance  has  such  an  act  been    held  void. 
Among  the  many  is  the  act  of  March  3,  1873,  17  St.  509,  authorizing  the 
Attorney  General  to  institute  suits  against  the  Union  Pacific  Railroad 
Co.  for  certain  acts  in  any  circuit  court  of  the  United  States.     The  con- 
stitutionality of  this  act  was  sustained  in  United  States  v.  Union  Pacific 
R.  R.,  98  U.  S.  569.     The  Carmack  amendment  to  the  interstate-com- 
merce act,  approved  June  29,-1906,  34  St.  595,  authorizes  an  action 
against  the  receiving  carrier,   regardless  of  the  fact  that  the  loss  or 
damage  sued  for  was  caused  by  a  connecting  carrier.     Its  constitutionality 
was  sustained  in  Atlantic  Coast  Line  v.  Riverside  Mills,  219  U.  S.  186. 
The  act  of  February  24,  1905,  chapter  778,  33  Statutes  811,  vested  the 
exclusive  jurisdiction  of  actions  on  bonds  of  contractors  for  the  construc- 
tion of  public  works  in  the  courts  of  the  district  in  which  said  contract 
was  to  be  performed  and  executed.     The  validity  of  the  act  was  sustained 
in  United  States  v.  Congress  Construction  Co.,  222  U.  S.  199,  203;  Hopkins 
v.] Ellington  &  Guy,  246  U.  S.  655;  Ex  parte  Southwestern  Surety  Ins. 
Co.,  247  U.  S.   19.     The  Clayton  Act,  approved  October  15,   1914,  38 
Statutes  730,  737,  section  12,  expressly  authorizes  an  action  by  the  Gov- 
ernment, not  only  in  the  district  whereof  the  defendant  corporation  is 
an  inhabitant,  but  in  any  district  where  it  may  be  found  or  does  business. 
Section  15  of  that  act  authorizes  sen-ice  of  piocess  on  other  parties  than 


the  offending  corporation,  who  are  properly  joined,  in  any  district  where 
found.  The  validity  of  these  provisions  was  sustained  in  Southern  Photo 
Material  Co.  v.  Eastman  Kodak  Co.  (D.  C),  234  Fed.  955. 

Every  State  of  the  Union  has  provided  by  statute  the  venue  for  civil 
actions  in  its  courts.  In  some  States  actions  may  be  brought  only  in 
the  county  where  the  defendant  resides;  in  some  where  the  defendant 
resides  or  may  be  found;  some  actions  can  only  be  maintained  in  the 
county  in  which  the  cause  of  action  accrued;  others  where  the  subject 
matter  of  the  action  is  situated;  and  in  some  States  actions  may  be 
maintained  in  the  county  where  either  plaintiff  or  defendant  resides. 
The  various  acts  are  referred  to  in  22  Encyclopedia  of  Pleading  and 
Practice  790,  et  sequa. 

In  United  States  v.  Crawford  (C.  C),  47  Fed.  561,  565,  Judge  Parker 
said:  "I  have  no  doubt  that  Congress  may  provide  for  service  of  process 
out  of  the  district,  as  this  is  a  regulation  of  practice  and  subject  to  the 
legislative  control."  This  was  cited  with  approval  by  Judge  Morrow  in 
United  States  v.  American  Lumber  Co.  (C.  C),  80  Fed.  309,  and  in  Sidney 
L.  Bauman,  etc.,  Co.  v.  Hart,  192  Fed.  498,  113  C.  C.  A.  104. 

3.  Another  ground  upon  which  this  provision  of  the' act  must  be  upheld 
is  that  the  courts  of  the  United  States,  inferior  to  the  Supreme  Court,  are 
not  established  by  the  Constitution,  but  owe  their  existence  and  powers 
to  Congress  alone.  That  they  possess  no  powers  not  granted  by  an  Act 
of  Congress  was  determined  as  early  as  1809  in  Bank  of  United  States  v. 
Devaux,  9  U.  S.  61,  and  again  in  181 2  in  United  States  v.  Hudson,  11 
U.  S.  32,  and  uniformly  adhered  to  ever  since.  A  late  case  in  which 
this  ruling  is  reaffirmed  is  In  re  Wisner,  203  U.  S.  449,  455.  That  Con- 
gress may  increase  or  diminish  their  powers,  or  abolish  them,  is  beyond 
question.  It  has  done  so  a  number  of  times.  The  judiciary  act  of  1875, 
18  Statutes  470,  extended  the  jurisdiction  of  the  circuit  courts  of  the 
United  States  materially;  the  act  of  1887,  24  Statutes  552,  contracted  it; 
the  Judicial  Code,  36  Statutes  1087,  increased  it  in  some  respects  and  in 
others  decreased  it.  By  that  act,  Congress  abolished  the  circuit  courts, 
and  no  one  ever  questioned  the  exercise  of  these  powers  by  Congress. 
If  Congress,  by  the  act  under  consideration,  has  seen  proper  to  author- 
ize the  contraction  of  the  jurisdiction  of  the  district  courts,  by  limiting 
the  courts  in  which  actions  may  be  maintained,  it  has  only  exerted  the 
power  which  has  been  exercised  ever  since  the  enactment  of  the  first 
judiciary  act,  in  1789,  by  the  First  Congress  under  the  Constitution. 
Possessing  this  power,  Congress  may  well  determine  in  what  courts 
actions  may  or  may  not  be  maintained. 

The  Constitution  confers  on  the  Supreme  Court  appellate  jurisdiction 
but  "with  such  exceptions  and  under  such  regulations  as  Congress  shall 
make."  In  ex  parte  McCardle,  74  U.  S.  506,  514,  it  was  held  that  Con- 
gress could  deprive  that  court  of  appellate  jurisdiction,  and  the  repeal  of 
an  act  of  Congress  granting  appellate  jurisdiction  in  certain  causes  de- 
prived the  court  of  the  power  to  review  judgments  in  such  actions. 
This  case  has  been  followed  as  a  correct  interpretation  of  the  powers 


UC  SOUTHERN  REGIONAL 

mil 


7  AA    000  732  368    6 

of  Congress  in  all  cases  involving  this  question,  decided  since.  Murphy 
v.  Otter,  186  U.  S.  95,  109. 

In  Dolley  v.  Pennsylvania  R.  R.  Co.  (D.  C),  250  Fed.  142,  Judge 
Booth  passed  upon  an  act  similar  to  this  and  sustained  it. 

The  contention  that  the  statute  is  void  because  vesting  administrative 
officers  with  legislative  discretion  or  power  is  without  merit.  Selective 
Draft  cases,  245  U.  S.  366,  3S9. 

It  is  therefore  clear  that  the  act,  if  it  authorizes  these  general  orders, 
is  within  the  power  of  Congress  under  the  Constitution. 

Does  the  act  of  Congress  grant  this  power  to  the  President? 

Counsel  for  plaintiff  contend  that  it  does  not,  relying  upon  that  part 
of  section  10  of  the  act  which  reads:  "Actions  at  law  or  suits  in  equity 
may  be  brought  by  or  against  such  carriers  and  judgments  rendered  as 
now  provided  by  law." 

In  the  opinion  of  the  court,  all  this  quotation  means  is  that  any  person 
having  a  cause  of  action  shall  not  by  reason  of  this  act,  of  any  regulation 
made  thereunder,  be  deprived  of  the  right  to  maintain  it  in  a  proper 
court  if,  under  the  State,  Federal,  or  common  law,  he  is  entitled  to  a  legal 
remedy.  It  does  not  mean,  as  claimed,  that  having  a  cause  of  action 
against  the  carrier  he  has  the  right  to  institute  it  in  any  forum  in  which 
he  could  have  brought  it  before  the  passage  of  this  act.  To  meet  the 
exigencies  existing  during  the  war,  Congress  has  granted  to  the  President 
the  power  to  say  that  one  shall  not  maintain  an  action  in  a  forum  where 
the  natural  effect  of  selecting  such  forum  will  be,  in  the  language  of  Gen- 
eral Order  No.  18,  "That  men  operating  trains  engaged  in  hauling  war 
materials,  troops,  munitions,  or  supplies,  are  required  to  leave  their  trains 
and  attend  court  as  witnesses,  and  travel  sometimes  for  hundreds  of  miles 
from  their  work,  necessitating  absence  from  their  trains  for  days  and 
sometimes  for  a  week  or  more;  which  practice  is  highly  prejudicial  to  the 
just  interests  of  the  Government  and  seriously  interferes  with  the  physical 
operation  of  the  railroads;  and  the  practice  of  suing  in  remote  jurisdic- 
tions is  not  necessary  for  the  protection  of  the  rights  or  the  just  interests 
of  plaintiffs."  That  the  exercise  of  the  right  to  maintain  actions  in  a 
forum  distant  from  the  place  where  the  witnesses  reside,  will  seriously 
interfere  with  the  successful  prosecution  of  the  war  can  not  be  open  to 
doubt.  How  are  the  soldiers  drafted  under  the  selective-draft  act  to  be 
transported  from  the  interior  to  the  seaports,  if  the  operation  of  trains  is 
to  be  interfered  with  in  this  manner?  How  are  munitions,  clothing,  food, 
coal,  and  other  supplies  necessary  to  carry  on  the  war  to  be  transported 
expeditiously  if  the  employees,  without  whom  trains  can  not  be  operated, 
are  to  be  compelled  to  leave  their  employment  to  attend  as  witnesses  at 
places,  hundreds  of  miles  away  from  where  their  duties  require  them  to 
be,  whenever  a  person  has,  or  imagines  he  has,  a  cause  of  action  against 
the  carrier,  and  for  his  convenience,  or  in  some  instances,  perhaps  to  pre- 
vent a  proper  defense,  institutes  the  action  in  a  court  far  distant  from  the 
district  where  the  cause  of  action  arose,  and  in  a  district  other  than  that 


8 

of  the  residence  of  the  plaintiff  at  the  time  of  the  accrual  of  the  cause  of 
action  ?  The  fact  that  not  only  the  plaintiff  but  his  witnesses  can  more 
conveniently  attend  the  court,  if  held  at  or  near  his  home,  or  where  the 
cause  of  action  accrued,  may  well  raise  a  doubt  whether  the  selection  of  a 
foreign  forum  is  always  made  in  good  faith.  The  amendment  of  General 
Order  No.  18  by  General  Order  No.  18-A  was  evidently  intended  to  pre- 
vent a  change  of  residence  for  the  purpose  of  enabling  a  suit  to  be  brought 
at  a  distance  from  where  the  plaintiff  resided  at  the  time  of  the  accrual 
of  the  cause  of  action,  as  is  so  frequently  done  to  enable  one  to  maintain 
an  action  in  a  national  court,  instead  of  in  the  courts  of  the  State  of  which 
the  plaintiff  and  defendant  were  both  citizens  at  the  time  of  the  accrual 
of  the  cause  of  action. 

But  aside  from  this,  statutes  may  not  be  construed  by  selecting  some 
part  thereof  and  disregarding  other  parts.  For  a  proper  construction 
of  a  statute  the  whole  of  it  must  be  read  together,  to  ascertain  the  leg- 
islative intent.  In  the  language  of  Mr.  Chief  Justice  White  in  Van  Dyke 
v.  Cordova  Copper  Co.,  234  U.  S.  188,  191,  "We  may  not  in  order  to  give 
effect  to  those  words  virtually  destroy  the  meaning  of  the  entire  context; 
that  is,  give  them  a  significance  which  would  be  clearly  repugnant  to  the 
statute,  looked  at  as  a  whole  and  destructive  of  its  obvious  intent."  The 
various  provisions  of  an  act  should  be  read  so  that  all  may,  if  possible, 
have  their  due  and  conjoint  effect  without  repugnancy  or  inconsistency. 
New  Lapp  Chimney  Co.  v.  Ansonia  Brass  Co.,  91  U.  S.  656,  662;  Aaron 
v.  United  States,  204  Fed.  943,  123  C.  C.  A.  265. 

Applying  this  canon  of  construction  to  the  act  and  giving  effect  to  every 
part  of  it,  as  is  our  duty,  it  is  apparent  at  once  how  untenable  this  con- 
tention is.  That  part  of  section  10  applicable  to  the  matter  in  contro- 
versey  reads:  "Sec.  10.  That  carriers  while  under  Federal  control  shall  be 
subject  to  all  laws  and  liabilities  as  common  carriers,  whether  arising 
under  State  or  Federal  laws  or  at  common  law,  except  in  so  far  as  may 
be  inconsistent  with  the  provisions  of  this  act  or  any  other  act  applicable  to 
such  Federal  control  or  with  any  order  of  the  President."  Another  pro- 
vision of  the  act  is  section  9:  "And  the  President,  in  addition  to  the 
powers  conferred  by  this  act,  shall  have  and  is  hereby  given  such  other 
and  further  powers  necessary  or  appropriate  to  give  effect  to  the  powers 
herein  and  heretofore  conferred." 

There  is  nothing  in  the  general  orders  under  consideration  which  de- 
prives the  plaintiff  of  her  right  to  maintain  an  action  against  the  defend- 
ant, but  for  reasons  of  public  necessity,  in  a  time  of  war,  these  regulations 
were  made,  because  in  the  opinion  of  the  President  and  Director  General  for 
good  and  sufficient  reasons,  they  are  necessary  to  prevent  serious  interfer- 
ence with  the  physical  operation  of  railroads  under  the  control  of  the  Gov- 
ernment and  employed  in  the  prosecution  of  the  war.  The  act  and  regu- 
lations may  well  be  sustained  upon  the  ground  that  "Salus  populi  suprema 
lex  est."  "The  welfare  of  the  people  is  the  paramount  law." 
The  demurrer  to  the  plea  is  overruled. 

o 


